Point of View

Restorative justice: “what can we do to make things right?”

16.08.2016

Since independence, Armenia has adopted thousands of new laws, including three editions of the state’s Constitution, which drastically changed the legal framework of the country. The development of Armenian legislation is still in progress and so are the international standards and tendencies. Therefore, it is important to respond to the positive developments of international practice in timely and effective manner in order to keep pace with the best practices in those areas where Armenia has available resources and capacities.

One of those positive developments in international practice is the evolution of the concept of restorative justice, which is seen as an alternative to the traditional punitive criminal justice system. It becomes more and more evident that the latter has reached its limits to respond to the specific needs of criminal justice with new and advanced solutions. To date, the whole criminal process in Armenia, as in the vast majority of other countries is focused on detecting offences and further punishment of those responsible for the crimes. Such an approach leaves the convict stigmatized with significantly diminished possibilities of reintegration into the society. The absence of effective re-socialization programs leads to the inevitable consequences: the more people go through the Armenian prisons, the bigger the number of people with increased hostility towards law enforcement bodies for whom aggressive and violent behavior is the usual way of life.

On the other side we have a situation when the individual needs of victims and the full restoration of their rights and interests are also not taken into account and not addressed on a case by case basis. Our criminal justice system does not cherish the victim as the key participant of the administration of justice and this isn’t just about corruption or lack of resources or other factors commonly cited as shortcomings of our criminal system. The real problem is the outdated ideology behind today's crisis of the criminal justice system. According to the existing Criminal Code of Armenia, the main aims of the criminal sanction are the restoration of social justice, correction of the offender and prevention of crimes. The wording is based on the Soviet Criminal legislation.

As we can see victims’ interests are excluded from the list of primary values that our criminal law seeks to protect by means of criminal sanction. Up until now the criminal system has been based on the premise that during the criminal proceedings the state, in the first place, defends a public (read: state) interest, which was infringed by the crime. Victim is treated as a witness with special status, who is virtually left out of the sight of the criminal justice agencies after the sentencing. In Armenia the very few references to the role of victim are made in the Criminal Code in relation to victim-offender reconciliation in case of minor offences and dropping charges in such a case; reconciliation with victim as a mitigating factor for sentencing as well as paying reparations in case of early conditional release.

Understanding these interrelated phenomena has led to the further attempts to develop a more inclusive approach, which will address the needs of offender, victim and the whole community they both live in. The whole concept of the restorative justice is built around the interests of the victim and society, which should let the offender back after the prison term was served or during the period of alternative sanction. In this respect, the main role of the state is in the responsibility to protect and fulfill the rights of each side of the criminal process, which in turn will lead to the improved coexistence between victims and offenders within one community and the overall health of the social life.

Restorative justice: origins

The first documented case that is regarded as a precursor of the development of restorative justice takes us to Ontario, Canada. There, in 1974, during a routine case of teenage vandalism, a probation officer Mark Yantzi suggested the presiding judge to order the two accused men to meet each victim and personally discuss how they could repair the damage inflicted by their actions. The flexibility of Canadian justice system allowed the judge to take a risk and support the unprecedented initiative of the probation officer. As a result, the accused agreed to compensate the losses and personally came to apologize and bring money to each victim within a specified period of time. The success of this case led to the development of a pilot and later the statewide project, which is now known under the term “victim-offender reconciliation programs”.

Since 1974 the international practice has made an impressive progress in the theoretical and practical validation of the principles of restorative justice.

Restorative justice: going global

This was coupled with political processes. As any other significant and promising idea the concept of restorative justice was supported by intergovernmental mechanisms, both regional (the Council of Europe in our case) and universal, i.e. the UN system. In 1995 the Council of Europe appointed an Expert Committee to evaluate and assess the use of mediation in criminal proceedings within Europe. Between 1996 and 1999 the Committee met to review reports from countries with experience in mediation of criminal matters, and to consider what if any recommendations to make. The appendix of the report defines “mediation” principles for Member States of the Council of Europe to consider when using mediation in penal matters. The Committee of Ministers adopted the recommendation in September 1999. Meanwhile in April 1997, the UN Commission on Crime Prevention and Criminal Justice adopted a provisional agenda for that 2000 Crime Congress. Item four on the agenda was "Offenders and victims: accountability and fairness in the justice process."

It was understood that this topic opened the door to discussion of restorative justice as well as issues related to the rights and roles of victims in criminal justice. In April 2000, at the Commission on Crime Prevention and Criminal Justice meeting, the governments of Canada and Italy introduced a resolution proposing development of basic principles on the use of restorative justice. Thirty-eight other countries joined as cosponsors and the resolution was approved unanimously and referred to the Economic and Social Council. In July 2002, the United Nations Economic and Social Council adopted "Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters" [E/CN.15/2002/5/Add.1] as a guide to encourage member states to implement restorative justice in the operation of their domestic juvenile criminal justice systems .

Restoration justice: the essence

The United Nations Economic and Social Council Resolution avoided using prescriptive or narrow definitions that might impede further development of the theories of restorative justice. To the question what is restorative justice the Resolution answered in the following way:

1. "Restorative justice programme" means any programme that uses restorative processes and seeks to achieve restorative outcomes.

2. "Restorative process" means any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator. Restorative processes may include mediation, conciliation, conferencing and sentencing circles.

3. "Restorative outcome" means an agreement reached as a result of a restorative process. Restorative outcomes include responses and programmes such as reparation, restitution and community service, aimed at meeting the individual and collective needs and responsibilities of the parties and achieving the reintegration of the victim and the offender.”

Unlike the traditional system of criminal prosecution, the new approach is not oriented on the detection of the crime and punishment of the offender, it is focused on the restoration of the interests of victims and re-socialization of the offender by means of such restoration. Indeed, it is logical, that the interests of the victim are in the heart of the disruption of the balance of healthy social interaction between its members caused by a crime. In case of genuine reconciliation between victim and offender the initial balance is restored to the maximum extent possible, which should be considered as the ultimate aim of the administration of justice, along with the crime prevention and correction of offenders.

This is done through mediation and restorative justice programmes designed for referrals from different points within the criminal justice process. A direct or indirect dialogue between the offender and the victim with the help of specially appointed mediators helps offender to see that s/he infringed human and not state values. The offender is encouraged to accept his guilt and responsibility for the damage he inflicted by his unlawful behavior. At the same time, it is not only about the guilt and responsibility, the whole process which brings together victims and offenders address the totality of the facts and feelings from the point of view of each of the principal participants, many of which are lost in the traditional formalistic approach to justice and criminal prosecution. As international practice show, such approach has especially positive educational effect upon young offenders, and prevents reoffending much more effectively than any prison term or fine.

Armenian criminal legislation today is in the process of global restructuring. On June 6 the “Law on Probation”, introducing a completely new institute of Probation Service and Mediation, entered into force. All three main tools, the Criminal Code, the Criminal Procedure Code and the Penitentiary Code, are “under construction” and it is expected that their final provisions, among other key issues, will include up-to-date approaches to criminal justice and reshape the status of victims and offenders in the criminal process. And we say “it is expected” because, regrettably, the restorative justice principles of dialogue and inclusion of all the stakeholders are not fully taken into account by the Government while drafting any new legislative instruments.

All told, the bottom line is Armenia needs not to reinvent the wheel in terms of basic statistical and theoretical research. We need only to acknowledge the weakness of the current system and develop own version of criminal reform that would take into account the best international developments and our traditional inclination to find a solution to interpersonal conflicts through dialogue and cooperation, rather than through antagonism, isolation and use of coercive state mechanisms. Restorative justice address challenges in a very Armenian way, its main question is “what can we do to make things right?”, its main principle is personal interaction and dialogue and this is just the same way Armenians behave in a case of dispute. Thus, in our view, the current endeavors to introduce some key elements of restorative justice into the criminal justice system when implemented with due regard to interests of victims and offenders would find the fertile ground essential to create the conditions for better administration of justice in Armenia.

Source www.hra.am